Is It Necessary to Run a Background Check?

As an employer, it is a good idea to run a background check for a variety of reasons. Some industries – particularly those that involve handling of people’s personal information and/or care taking of children, the elderly or disabled – are legally mandated to run background searches on all employees.

Even if you’re not legally required to run a background check, it is recommended that you still do so for the protection and safety of your employees and customers. A simple background search is the first step to help prevent abuse and violence within the workplace and failure to run a check could result in lawsuits claiming negligence, which could cost the company substantially in legal and/or settlement fees.

Furthermore, it is important to protect you and your company from internal theft. Embezzlement is a particularly damaging force. According to the Association of Certified Fraud Examiners, small businesses of those with fewer than 100 employees experience the highest losses through embezzlement than any other business category, with a median loss of $200,000. Many of the guilty parties spearheading the theft have prior records of similar crimes.

Background checks are also useful in the hiring decision by helping to verify that your candidates have the skills they claim. A recent survey by Jobacle revealed that an estimated 43% of people in the US have admitted to fudging their resumes. Among the top five lies are pretending to have or exaggerating the skills and/or falsifying credentials needed for the position. A simple education verification can assure your candidate is truly qualified for and can excel in the job role.

What Searches Should I Run?

There are no established screening requirements; the level of search depends upon your industry and the position you are seeking to fulfill. However, a good starting point would be a Social Security number trace to confirm that the applicant’s given information is accurate, as well as a SSN validation pull a full list of alias and address history. From here, you are able to run a range of additional searches.

How detailed of a search is dependent on the employer. The most common place to start is criminal history, which are available at the county, state, and federal level. A database search is a recommended cursory check, as it pulls up any files from a database of more 400 million records provided by counties across the country, as well as the Department of Corrections, Administration of the Court, national and international terrorism sources and sex offender registries of all 50 states, Washington, DC, Puerto Rico and Guam.

You may want to supplement this search with an on-site courthouse search, which is available via Now Checking You at both county and federal level. These searches uncover any records not submitted to the database and/or can uncover very recent activity. Our three tiered package options are suggested bundled services that provide increasing levels of searches.

For upper management positions, verification searches are a good way to validate that the applicant does indeed have the stated credentials to perform the job. An education verification confirms dates of attendance at the stated school and degrees received. This service also seeks out “diploma mills” that sell diplomas with no schoolwork necessary.

Additional search types include credit reports and motor vehicle records. The credit report useful for assessing the responsibility level of the candidate, as it provides information regarding the applicant’s credit history such as bankruptcies, tax liens and accounts in collections. There are two types of motor vehicle records: the Commercial Drivers License (CDL) check and the non-CDL check. Both include name, state, expiation date, restrictions and any violation information. The CDL check includes additional information about clearances, issuances and CDL class. The non‐CDL check includes factors such as the license status and general demographics. Employers may want to use this search even for its non-driver positions because state convictions for DUI and DWI can only be pulled through the motor vehicle check, thereby would not appear in a criminal background.

What Information Do I Need To Obtain From The Applicant?

Prior to running the search, you, as the employer, will need to inform the applicant that a background search is being run. The applicant will then need to sign a provided disclosure and authorization form, confirming that their have read and understand their rights under the Federal Consumer Report Act (FCRA) and consenting that your company can request their background information. This document also requests the applicant to provide the personal information needed to run a variety of searches including full name and potential aliases, address history, Social Security number, date of birth and driver’s license number.

To remain in legal compliance with the FCRA, this document must be signed before any search can be conducted. Once the form is completed and returned, submit it to your Now Checking You account to proceed with your order. We also recommend that you retain a copy for your HR files.

To obtain a sample of the standard disclosure and authorization form, please click here.

(For applicants who live or work in California, click here for disclosure and authorization form)

What Are The Applicant’s Rights?

As noted above, applicants and employees are protected under the Fair Credit Reporting Act (FCRA). Enacted in 1971 to ensure fairness, impartiality and respect of the consumer’s right to privacy, the FCRA places limits what can be reported by third-party consumer reporting agencies.

Despite the act’s name, these regulations are not limited to credit, but oversee all consumer reports that are used to determine a person’s eligibility for credit, insurance or a job. For employment purposes, this can include criminal and civil background searches; credit checks; education and certification verifications; as well as motor vehicle reports.

Under the FCRA, there are a number of stipulations about what can or cannot be pulled. For instance, bankruptcy cases can be no older than 10 years and all other report types can be no older than seven years, with the exception of criminal convictions, which is the only report type with no past limits. Furthermore, these rules do not apply to candidates for positions that pay a salary of $75,000 or higher.

The applicant’s permission via the disclosure and authorization release form mentioned in the previous question is also required under this act. This document must be signed before the search can be legally performed. Employers should be aware that the applicant has the right to request that the company actually running the check send a copy of the report. In addition, if an applicant feels that the report was inaccurate and that they were declined the position due to this inaccuracy, they have the right to require the background screening company to reinvestigate and, if needed, correct the report.

New to the employee screening process? Click here to obtain the full list of rights and regulations under the FCRA.

What Is The Difference Between A Database Criminal And A County Criminal Search?

The database criminal search is a quick, cursory background check. It pulls from a variety of electronic resources and more than 400 million records provided by counties across the country, as well as Department of Corrections (DOC), Administration of the Court (AOC) and sex offender registries of all 50 states, Washington, DC, Puerto Rico and Guam. Additional sources include national and international terrorism sources, and proprietary database of previously completed reports.

While our database is comprehensive, some counties may not regularly submit updated reports or may only provide partial records. Thus, this type of search may yield incomplete or missing records under the candidate’s information. As most felonies and misdemeanors are reported at the county level, it is suggested that employers also run a county criminal search, whereby a researcher to sent to the respective county courthouse to physically review the indexes and pull relevant records.

It is important to note that criminal records are filed in the county in which the crime took place. Therefore, any crimes committed outside of the county of residence would not appear under a traditional county background check. The database option; however, can help uncover any of these hidden pockets from its extensive national records. For the most encompassing results, it is suggested that both search types are performed.

What Is The Different Between County Criminal Records and Federal Criminal Records?

Crimes are reported at either the state (including county) or federal level.

While laws are overall consistent across the country, most crimes are in fact a violation of state law. Each state establishes its own courts at the state, county, city or other municipality level; and most individual misdemeanor and felony crimes are reported and processed in the respective county in which the crime took place. County criminal examples can include traffic violations, robberies, assault, drug possession, and murder. These records can be pulled from the specific county courthouse.

Federal laws are limited to those outlined in the Constitution and those appointed by Congress and can include kidnapping, drug trafficking, interstate transportation of stolen goods, bankruptcy, copyright infringements or crimes on or against federal property. In addition, cases in which the US is an involved party and cases between citizens of different states whereby the amount in controversy is in excess of $75,000 are held in federal court. Each state has at least on US District Court – some states with up to four – where these federal cases are filed.

How Do I Order My Background Search?

How Far Back Do Searches Go?

Under the FCRA, reports cannot date farther back than seven years. Two exceptions are bankruptcy reports, which cannot date back more than 10 years, and criminal convictions, which have no date stipulations (though each state has its own regulations). In addition, if the applicant is slated to make $75,000 or more, these rules do not apply.

Criminal background checks through Now Checking You date back a minimum of seven years. Some reports may be older than seven years dependent upon the policies of the respective courthouse providing the files.

How Will My Reports Be Delivered?

Once complete, your report will be delivered to the specified email address. For multiple orders, you will not receive an email notification until all are fulfilled. This results are also store within your Now Checking You account to be viewed at anytime.

How Do I Understand The Report Results?

Now Checking You has attempted to lay out your report in the most understandable format; however, the information provided can be overwhelming at first. Generally, there are three different types of criminal reports:

Infraction – An infraction, sometimes called a petty offense, is the violation of an administrative regulation, an ordinance, a municipal code, and, in some jurisdictions, a state or local traffic rule. Infractions are governed primarily by state laws, which vary by state. In many states, infractions are not considered to be a criminal offense, therefore convictions are usually not punishable with jail time rather, rather result in monetary fines.

Misdemeanor – A misdemeanor is a criminal offense, though is less serious than a felony. Convictions usually result in fines and/or imprisonment for one year or less in a city or county jail. Examples can include petty theft, disturbing the peace, traffic violations, simple assault and battery, and public disruptions. Misdemeanors are tried in the lower courts, such as municipal, police or justice courts and are usually divided into three classes (in order of growing severity): petty, ordinary and high or gross, in which the fine and/or jail sentence varies.

Felony – Felonies are the most serious crimes and are generally punishable by fines and/or imprisonment terms in excess of one year. Examples include murder, rape, kidnapping, arson, treason, terrorism or burglary, etc. Unlike misdemeanors, where sentences are usually served in local jails (where there is a one-year holding limit), felony sentencing is usually served in a state prison. Many jurisdictions separate felonies into classes, whereby a repeat offender convicted of a felony is subject to harsher punishment than a first-time offender.

These charges can result in one of the following outcomes:

Conviction – the criminal defendant is found guilty.

Deferral – generally refers to putting off something until a future date.

Deferred Adjudication – certain offenses allow the opportunity for probation, treatment programs, and/or some type of community supervision. If all the conditions of probation are met, the offender can avoid a formal sentence, and in some jurisdictions, no permanent record of the crime will be made.

Dismissed with Prejudice - the case is dismissed after adjudication on the merits and the plaintiff is barred from bringing further action on the same claim.

Dismissed without Prejudice - the case is dismissed, but the plaintiff is allowed to bring a new suit on the same claim within a period of limitation.

Acquittal - the defendant in a criminal case is found not guilty. A decision to acquit means that the judge or jury had a reasonable doubt – based on exculpatory evidence, lack of evidence or mental state of defendant – as to the defendant’s guilt. Under the constitutional prohibition against double jeopardy, once a defendant has been acquitted, he or she cannot be retried for the same matter. In some instances, a person acquitted of a crime may have the corresponding arrest records expunged.

Non Adjudication of Guilt – the court does not give a final judgment regarding the case. The person is put on probation, program or community service without an adjudication of guilt. If the person complies, then the case may be dismissed. However, some counties and states do not permit dismissal, thus the disposition remains adjudication withheld. If the person does not complete the terms of probation, a finding of guilty may be entered and the person may be sentenced according to the punishments defined for the offense. If the person successfully completes the terms of probation and has no subsequent offenses, no further action with be taken on the case and the offense for which adjudication was withheld is typically not considered a prior conviction under habitual offender sentencing.

Hung Jury – results from deadlocked jury in a criminal case, in which a decision on guilt or innocence cannot be made. A mistrial will be declared by the judge and a new trial with a new jury is required. However, the prosecutor can decide not to retry the case. The definition of a hung jury varies by jurisdiction and the number of counts against the defendant.

Note that each state/jurisdiction uses its own terminology and acronyms. To learn more about how to understand your reports, please see our Report Terminology document.

How Often Should I Perform Screenings On A Candidate/Employee?

It is recommended to run an initial background search during the hiring stage, as well as conduct ongoing screenings on hired applicants. An annual check is considered sufficient to capture any unclaimed charges against the employee following his/her hire date; however, industries with in-depth personal or financial information handling and/or client contact or care taking should consider more regular screenings. For more information about how to obtain automatic, ongoing monitoring of your employees, please see our products page.

Should the individual not contest the report results, you must notify him/her that the pre-adverse action is now an adverse decision through an Adverse Action Letter. This letter is to include:

The name, address, and phone number of the consumer reporting agency that supplied the report

A statement that the consumer reporting agency did not make the decision to take the adverse action and cannot give specific reasons for it

A notice of the individual’s right to dispute the accuracy or completeness of any information the agency furnished, and his or her right to an additional free consumer report from the agency upon request within 60 days.

In addition, many background screening companies, including Now Checking You, have samples of both the Pre-Adverse and Adverse Action letters for your reference. Please contact us anytime to request these documents. Furthermore, each company should work closely with its legal team to create policies and key company roles for potential disputes at each stage in the background screening and hiring/declining process.